THE INDICTMENT of Linda Tripp for recording her telephone conversations with Monica Lewinsky is, at once, an attempt to vindicate a valuable civil liberties principle and an act that presents civil liberties problems of its own.
Ms. Tripp, of course, famously violated Ms. Lewinsky's right under Maryland law not to be taped over the phone without her knowledge and consent. Ms. Tripp recorded their conversations even after she was informed by an attorney that doing so was against Maryland law. The indictment by a grand jury in Howard County charges her with two felony violations of Maryland's anti-wiretapping statute, one for taping a conversation with Ms. Lewinsky on Dec. 22, 1997, and the other for playing that tape to reporters for Newsweek magazine. Whatever one thinks of the investigation or impeachment that followed the taping, Maryland certainly has a legitimate interest in the enforcement of this law -- and one can see its enforcement as an affirmation of the civil liberties it was passed to protect.
The trouble is that the prosecution itself may present a civil liberties problem. The tape in question was provided by Ms. Tripp to Kenneth Starr's prosecutors in connection with an immunity agreement that seems specifically to cover the production of the tapes she had made. Thus a real question exists as to whether its use as evidence against her in a state proceeding would violate her Fifth Amendment right against self-incrimination. Her comments to Mr. Starr's federal grand jury seem even more clearly off limits.
In other words, in order to vindicate Ms. Lewinksy's right under Maryland law not to be wiretapped, prosecutors will either have to ask the courts to construe Fifth Amendment protections narrowly or will have to prove their case without using, even indirectly, any information Ms. Tripp gave to Mr. Starr. The impulse to make a statement about the importance of Maryland's wiretapping statute -- particularly in a case in which the violation was so flagrant and so devastating to its victim -- is not one to be dismissed merely as partisan grandstanding. But the vindication of a privacy right under a state law cannot come at the expense of diminishing constitutional protections.
Our sense is that, at this late date in the entire convoluted affair, there ought to be a way of making the point that what Ms. Tripp did was wrong without exposing her to a full-dress felony prosecution -- and that the lawyers on the two sides ought to find it.